N18 ' He GENERAL COURT OF JUSTICE 14™ JUDICIAL DISTRICT DURHAM COUNTY STATE OF NORTH CAROLINA ATING TO BAIL AND PRETRIAL RELEASE POLICIES EFFECTIVE APRIL 1, 2011 THE HONORABLE ORLANDO F. HUDSON, JR. SENIOR RESIDENT SUPERIOR COURT JUDGE AND THE HONORABLE MARCIA H. MOREY CHIEF DISTRICT COURT JUDGE14" JUDICIAL DISTRICT POLICIES RELATING TO BAIL AND PRETRIAL RELEASE, PURPOSE OF BAIL:! \ Two philosophies clash as to the purpose of bail, One view sees preventive detention after arrest as necessary in a violent society. The other view is that because everyone is presumed innocent until proven guilty that there is a fundamental right to bail. Incarceration until trial does assure presence of the accused when required in court. Adequate monetary bail and conditional pretrial release tend to assure presence of the accused when required, The traditional purpose of bail is to assure the defendant's presence in court when needed. ‘The modem purpose is the same regardless of the form the bail may take. In North Carolina, a legislative policy about bail, G.S. 15A, Article 26, has been in effect since September 1, 1975. From the explicit provisions of that article, it is readily apparent that our law is designed and intended to impose the Jeast restrictive non-monetary form of pretrial release that will reasonably assure the defendant’s appearance in court; and to end, or at least to minimize, the abuses in calling for a money bond in a pre-fixed established amount in all cases. This law places the decision-making process as to form of release and amount of bord in the judicial officer ‘who may know the most, or who can most readily learn the most, about the defendant. In the decision-making process of granting bail or not, itis recognized that any “admission to bail always involves a risk thet the accused will take flight,” and a risk that the released defendant may “commit a fresh crime while out on bail.” These are calculated risks taken “as the price of our system of justice” by the North Carolina legislature and our courts, The United States Supreme Court has said (S. vs. Boyle, 342 US 1, 96 L.Ed. 3 (1951), Vinson, Chief Justice): “This traditional right to freedom before conviction permits unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction, ~ Unless this right to bail before trial is preserved, the presumption of innocence secured only through centuries of struggle, would lose its meaning.” As Justice Jackson said in a concurring opinion: “The spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. Without this conditional privilege, even those wrongfully accused are punished by a period of imprisonment while ' ‘The “Purpose of Bail” section of the 14* Judicial District's Policies was drawn from the “Purpose of Bail” segment of the 12" Judicial District's Policies, authored by Senior Resident Superior Court Judge E. Lynn Johnson and Chief District Court Judoe A. Flizvaheth Keevering trial, and are handicapped in consulting counsel, searching for evidence and witnesses, and preparing a defense,” af ‘The answer to the pretrial dilemma is a speedy trial. The only other alternative is to change | the law by a new statute in the legislature, or a change in the Constitution, Our legislature has unequivocally provided that a defendant charged with a non-capital offense shall be entitled to his pretrial release on bond, secured or unsecured, in accordance with the provisions of G.S. 15A-333(b) and G.S. 154-534. Even in a capital case, the legislative policy is that such a defendant “may be released before trial.” [G.S, 15A-533(c) and G.S. 15A-934] Thu North Carolina law does not give a judicial official the right to deny a bond for preventive detention. However, G.S. 15A-534(b) of the North Carolina General Statutes does say that if the release of the defendant on an unsecured bond “will pose a danger of injury to any person; or it is likely to result in destruction of evidence, subomation of perjury, or intimidation of potential witnesses,” a secured bond shall then be imposed. The amount of bail or the terms of release shall be such as to reasonably guarantee the presence of the defendant when needed. In some instances this may be “high” according to the view of the defendant, but “essential” to avoid flight according to the judicial official. Under the Eighth Amendment to the United States Constitution, bail that is set at a figure higher than an amount reasonably calculated to fulfill its purpose of preventing flight and assuring presence is “excessive” and thus unlawful, and may result in civil penalties against the official setting the bond. DE! ERMINING CONDITIONS OF RELEASE {G.S. 15A-534{c] and B.S. 15A-534.1}: The judicial official must, on the basis of available information, take into account: the nature and circumstances of the offense charged; the weight of the evidence against the defendant, family ties of the defendant employment of the defendant; financial resources of the defendant; character of the defendant; mental conditions of the defendant; whether the defendant is intoxicated to such a degree that the defendant would be endangered if released without supervision; 9. the length of the defendant's residence in the community; 10. prior record of convictions of the defendant 11 history of flight to avoid prosecution of the defendant; 12. failure to appear at court proceedings by the defendant; 13, the defendant’s refusal to submit to mandatory fingerprinting as required by the provisions of G.S. 154-1383; 14. cooperation with law enforcement officials by the defendant; 15. crimes of domestic violence require consideration of G.S. [SA-534.1; and any other evidence relevant to the issue of pretrial release, including recommendations made by a prosecutor, a law enforcement officer, the defendant’s attorney, or the defendant's family; provided, however, that the judicial official is in no way compelled to follow such recommendations. April, 2011